Friday, October 26, 2012

Special Education Law 101 - Part VII

English: United States Supreme Court building ...
 (Photo credit: Wikipedia)
This is another post in our current series introducing readers to special education law's key concepts.  Today's post is about related services. This phrase is almost always preceded by "special education and..."

Let me know if you are enjoying this series. For some it is an introduction.  For others it is a chance to brush up on the key concepts...

Related Services

The IDEA defines related services as follows:

(A)  IN GENERAL- The term ‘related services’ means transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurse services designed to enable a child with a disability to receive a free and appropriate public education as described in the individualized education program of the child, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education…

(B)  EXCEPTION—The term does not include a medical device that is surgically implanted, or the replacement of such device.
IDEA, § 602(26).  See, 34 C.F.R. § 300.34.

              The issue of related services has resulted in two decisions by the United States Supreme Court.   The first decision was  Irving Independent Sch. Dist. v. Tatro  468 U.S. 883, 104 S.Ct. 3371, 555 IDELR 511 (1984).  The Court affirmed the Court of Appeals holding that a procedure known as clean intermittent catheterization was a related service because the student could not attend school without it and, therefore, without the procedure she could not benefit from special education.  Tatro, supra.  The Supreme Court also affirmed the holding of the Court of Appeals that clean intermittent catheterization is not exempted by the medical services provision because the procedure did not have to be performed by a doctor, it could be done by a layperson with an hour of training. Tatro, supra.

              The second decision was Cedar Rapids Community Sch. Dist. v. Garret F.  526 U.S. 66, 119 S.Ct. 992, 29 IDELR 966 (1999).  In this case, the Supreme Court held that urinary bladder catheterization and suctioning of tracheotomy plus various monitoring was a related service.  Garret F., supra.  Applying the “bright line” test of the Tatro decision, the Court held that because the related services did not have to be performed by a physician, the medical services exclusion did not apply and the schools were required to provide the services for the student.  Garret F., supra.  The Court specifically and emphatically rejected the argument raised by the schools that the cost of providing the services was a defense.  Garret F., supra. 

              In Marshall Joint Sch Dist No.2 v CD by Brian & Traci D 616 F. 3d 632, 54 IDELR 307 (7th Cir 8/2/10), the Seventh Circuit  concluded that the student did not need specialized instruction.  Any need for PT or OT, therefore, was not relevant.
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Wednesday, October 24, 2012

Sometimes My Job Is Very Cool - Part II

OK so it isn't the Virgin Islands. But still my work often takes me around the incredible state of West Virginia.  Here is one scene I drove past yesterday.  Guess where the "Almost Heaven..." idea came from.

See more photos on our special education law miniblog on Tumblr.

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Saturday, October 20, 2012

Special Education Law 101 - Part VI

List of primary state highways in Virginia
 (Photo credit: Wikipedia)

Our series providing an introduction to special education law continues.  Previous posts have introduced the two basic concepts underlying IDEA, free and appropriate education and least restrictive environment.  Last week we discussed eligibility and identification.  Today we will look at selected IEP issues.

Some IEP Issuies

Issues pertaining to IEPS are among the most frequent to appear in due process hearings.  Here are some fundamental points:

Issues pertaining to individualized education programs are governed by IDEA §§ 612(a)(4) and 614 (d)-(f).  See, 34 C.F.R, §§ 300.320-300.323,  300.324 – 300.328.

L.B. & J.B. on behalf of K.B. v. Nebo Sch. Dist., Bd. of Educ., et al, 379 F.3d 966, 41 IDELR 206 (10th Cir. 8/11/2004).  The IEP is the basic mechanism through which each child’s individual goals are achieved. 

D.F. & D.F. ex rel N.F. v. Ramapo Cent. Sch. Dist. 105 LRP 57524 (2d Cir. 11/23/05).  The Court notes that the case raises an issue as to whether it is proper to utilize prospective or retrospective analysis of an IEP.  The court stated that an IEP is a snapshot not a retrospective. In striving for appropriateness, an IEP must take into account what was, and was not, objectively reasonable when the snapshot was taken, i.e., at the time the IEP was formulated.  Contrast,  MS by Simchick v. Fairfax County Sch Bd 553 F.3d 315, 51 IDELR 148 (4th Cir 1/14/09).
In a recent trend involving cases alleging failure to implement IEPs, courts have increasingly taken a stance that to be actionable, the failure to implement must have been "material." This trend follows the reasoning of the Ninth Circuit Court of Appeals in  Van Duyn ex rel Van Duyn v. Baker Sch Dist 5J 481 F.3d 770, 47 IDELR 182 (9th Cir. 4/3/7) 
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Wednesday, October 17, 2012

Live from San Antonio

Flag of the City of San Antonio for fair use t...
 (Photo credit: Wikipedia)

I am enjoying the annual conference of the National association of Hearing Officials in San Antonio. NAHO is a great organization for administrative hearing officers. 

NAHO has a certification program that allows hearing officers to achieve certification through experience and continuing education. It also has an outstanding annual conference,  I'm pleased to be a part of the regular faculty at these conferences.  The conference serves as both a place to network and to see old friends as well as a continuing education opportunity.

And San Antonio is a fantastic city!

A more detailed report will follow. 
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Wednesday, October 10, 2012

Special Education Law 101 - Part V

English: A special education teacher assists o...
English: A special education teacher assists one of her students. (Photo credit: Wikipedia)

Our series providing an introduction to special education law continues.  Previous posts have introduced the two basic concepts underlying IDEA, free and appropriate education and least restrictive environment.  Today's post concerns eligibility and identification.

Identification & Eligibility

Issues pertaining to identification and eligibility are governed by IDEA § 612(a)(3) and 614 (b)(4)-(6).  See, 34 C.F.R, § 300.121- 300.125, 300.300, 300.306, 300.307 – 300.311.  

In summary, to be eligible, a child must have one of the enumerated conditions(mental impairment, a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), a serious emotional disturbance (referred to in this part as “emotional disturbance”), an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities)(which adversely affects his education) and by reason thereof, he must need special education and related services.  In addition as a third requirement for eligibility, most of the disabling conditions require that the condition adversely affects the child's educational performance.

Some important circuit court decisions:

Marshall Joint Sch Dist No 2 v. CD by Brian & Traci D    616 F.3d 632, 54 IDELR 307 (7th Cir 8/2/10) Seventh Circuit reversed HO who found student eligible solely upon physician’s opinion that the student could benefit from adaptive PE.  The Seventh Circuit noted that a physician may not simply prescribe special education; IEPT must consider relevant factors.

Alvin Indep Sch Dist v. AD by Patricia F 503 F.3d 378, 48 IDELR 240 (5th Cir. 10/4/7)  The fifth Circuit affirmed a holding that despite a fifth grader’s ADHD, he was not eligible for  special education.  The student consistently received passing grades, he succeeded on statewide tests and he was achieving in social situations.  Accordingly, he did not by reason thereof “need special education and related services,” and, therefore, he was not a child with a disability as defined by the IDEA

Hood v. Encinitas Union Sch Dist 47 IDELR 213 (9th Cir. 4/9/7)  The Ninth Circuit applied the Rowley standard to an eligibility issue.  Where the student consistently received above average grades despite her disability, she received educational benefit, and therefore, was not eligible for SpEdNOTE:  One legal scholars has questioned whether the Rowley test is too restrictive for eligibility purposes, Weber, Mark "The IDEA Eligibility Mess,"
IDEA also places a child find duty upon school districts.  A district has an affirmative duty to identify and evaluate children with disabilities.  District of Columbia Public Schs (JG) 111 LRP 25934 (SEA DC 3/18/11) The standard for child find is suspicion of a disability rather than actual knowledge. District of Columbia Public Schs (JG) 111 LRP 25934 (SEA DC 3/18/11).
Compton Unified Sch Dist v. Addison 598 F.3d 1181, 54 IDELR 71 (9th Cir. 3/22/10) By a 2-1 vote, Ninth Circuit rejected school district argument  that there is no child find duty because of language pertaining to prior written notice. The district argued that only an action or refusal is a violation. The Ninth Circuit held that a parent could file a dpc on any matter related to identification, evaluation, FAPE or placement, so, therefore, child find violations are actionable.  
Ridley Sch Dist v. MR & JR ex rel ER 680 F.3d 260, 58 IDELR 271 (3d Cir 3/19/12) Third circuit conducted a detailed review of the law concerning Child Find, and concluded that the HO erred by failing to allow the school district a reasonable time to identify the student as disabled.  
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